If Obscenity Were to Discriminate

In her thoughtful essay,
When Obscenity Discriminates,[1] Professor Elizabeth Glazer argues
that First Amendment obscenity doctrine, as it relates to portrayals of gay and
lesbian sex ("gay sex"), violates the Equal Protection Clause of the U.S.
Constitution, and, somewhat paradoxically, the First Amendment itself. More specifically, Professor Glazer appears
to make a three-pronged argument. First,
current obscenity doctrine leaves open the possibility that, in application,
juries or judges might find gay sex portrayals obscene simply because they
involve same-sex acts (as opposed to obscene acts). Second, this possibility in turn encourages
censorship of sexual expression involving gay sex by private actors. Finally, in view of the Court's decision in Lawrence v. Texas,[2] the obscenity doctrine violates the
Equal Protection Clause by causing such private discrimination, and also
violates the First Amendment because such discrimination is directed against
the viewpoint that gay sex is equally as acceptable as heterosexual sex.

While Glazer's thesis
is creative and provocative, she does not address critical legal and empirical
problems with her argument. The first is
the notion that existing constitutional doctrine of the U.S. Supreme Court can
itself be unconstitutional because it might be applied in a manner that
violates other constitutional doctrines. While such applications of a
doctrine might be unconstitutional if they were to occur, that does not render
the doctrine itself unconstitutional. The next problem is her idea that potential unconstitutional
applications of a doctrine that purportedly encourage private actors to
discriminate render the doctrine itself unconstitutional. If solely private actors commit the ultimate
discrimination, then there is no state action to support a claim of
constitutional violation.

Finally, there are
significant empirical deficiencies with Glazer's argument. She concedes there is little evidence that
juries or judges actually apply the obscenity doctrine against gay sex
portrayals in a discriminatory manner. Thus, she bases her claims of constitutional violation on alleged
discrimination by private parties. But
even here, Glazer attempts to make a case of private discrimination by focusing
on the actions of just two private entities—the Motion Picture Association of
America (MPAA) and Google—where her "proof" of discrimination involves highly
anecdotal or limited information, which fails to establish anything definitive. Moreover, Glazer provides no evidence to tie
the allegedly discriminatory behavior of these two entities to the obscenity
doctrine, relying instead on bare assertions that the doctrine's treatment of
gay sex portrayals causes such "collateral effects."[3]

This Essay develops
these criticisms of Professor Glazer's essay. Part I discusses the lack of a sound legal or empirical basis for
arguing that the obscenity doctrine is unconstitutional due to its claimed
discriminatory collateral effects. Part II
examines Glazer's argument as it might properly have been made: that if the
discriminatory application of the obscenity doctrine against gay sex portrayals
were to become an issue, the demands of a principled and coherent jurisprudence
would require the Court to revisit that doctrine in light of Lawrence to clarify that the gay or
lesbian nature of such portrayals is not a constitutional basis for deeming
expression to be obscene. I conclude
that Glazer would have a strong argument in this regard, but one that relies
primarily on basic equal protection and First Amendment principles rather than
on any changes wrought by Lawrence.

I. Of Discrimination and Empirical Support

A. The State Action Requirement for Constitutional
Violations

Three basic
interpretations of Professor Glazer's thesis appear possible, as suggested by
the following statements she makes, respectively, in her introduction and in
her conclusion: "Part IV elaborates the obscenity doctrine's
discrimination against gays and lesbians on both equal protection and First
Amendment grounds;"[4] and "The collateral effects of the
obscenity doctrine's current application have discriminated against gays and
lesbians. Further, by so discriminating,
the collateral effects of the doctrine have violated the Equal Protection
Clause and the First Amendment itself."[5]

The first possible
interpretation, based on the statement from her introduction,[6] is that Professor Glazer believes
the obscenity doctrine, and in particular the three-part test set out by the
Court in Miller v. California,[7] is unconstitutional in light of Lawrence.[8] But it is unusual to argue that a current
doctrine of the Court interpreting the First Amendment violates contemporaneous
constitutional doctrines that interpret the same or other Amendments.[9] The Court presumably formulates its doctrines
with others in mind, and while there might at times be unresolved tensions and
inconsistencies among them, to select one of them and label it unconstitutional
seems jurisprudentially incorrect. If
perceived tensions between Lawrence
and Miller were put squarely to the
Court, it might choose the former as requiring modification rather than the
latter (versus the other way around, as Glazer would have it). The point is that any tensions and
uncertainties that might exist between new and old doctrines do not create an
unconstitutional doctrine (or more appropriately a non-constitutional doctrine)until
the Court identifies one as no longer constituting good law.

The second possible
interpretation of Glazer's thesis, based on the statement from her conclusion
referenced above,[10]
is that alleged applications of the
obscenity doctrine by juries and judges in a way that discriminates against
portrayals of same-sex acts (i.e., an assertion of discriminatory enforcement
or, at the least, disparate impact) are unconstitutional. But Glazer appears to disclaim such an
argument by virtue of her repeated assertions that modern obscenity
prosecutions are relatively rare, and that the obscenity doctrine is in "disuse"[11] and has "disappear[ed] from courts'
dockets."[12]

Perhaps this is why
Glazer focuses on alleged "collateral effects" of the obscenity doctrine on
private actors. She seems to argue
principally that the unconstitutionality she asserts derives from the fact that
the doctrine leaves open the possibility
of discriminatory applications of the facially-neutral Miller test,[13]
which in turn induces private actors to discriminate against gay content.[14] If, however, Glazer is arguing that the
obscenity doctrine itself is unconstitutional because of possible
unconstitutional applications of it, this simply does not fly. The application of a constitutional doctrine
in a way that violates other constitutional provisions does not make the
doctrine itself unconstitutional. One
would have to argue, as Glazer does not, that the doctrine itself is
unconstitutionally vague because it admits of unconstitutional applications—an
argument that would be subject to the same objections lodged above that one
constitutional doctrine of the Court cannot violate another one of its
contemporaneous doctrines.

But Professor Glazer
takes her argument even further, arguing that the obscenity doctrine is
unconstitutional because potential discriminatory applications of it by juries
or judges has the collateral effect of inducing actual discrimination by
private parties. This creates an
additional problem. Where is the state
action necessary to support a constitutional violation if the doctrine itself
is not unconstitutional, there are no unconstitutional applications of it by
government actors, and any actual discrimination is committed by private
parties?[15] Of course, the only way for Glazer to properly make this argument is to
demonstrate how those private parties themselves can qualify as state actors
under the exceptions to that doctrine recognized by the Court.[16] However, she raises this issue solely as to
one private actor she discusses but promptly abandons it, stating simply that "with
respect to an assessment of the obscenity doctrine's collateral effects, it is
unnecessary to determine the status of the MPAA."[17] But why is this so? Especially if one is going to later conclude,
as noted above, that "the collateral effects of the doctrine have violated both
the Equal Protection Clause and the First Amendment itself."[18] The bottom line is that unless Professor
Glazer can demonstrate how the MPAA or Google can be considered to be state
actors (which seems highly unlikely), any reliance on their alleged
discrimination against gay content to prove a constitutional violation, even if
it was somehow induced by the obscenity doctrine, is misplaced.

B. Empirical Problems

Assuming Professor
Glazer could make a tenable argument that the collateral discrimination she
describes provides the basis for a constitutional violation, the evidence she
presents for such discrimination is unpersuasive. To begin, although not absolutely vital to
her argument since she focuses on the possible
discriminatory application of the obscenity doctrine as fostering collateral discrimination,
it is noteworthy that Glazer provides little evidence that juries or judges
discriminate against gay sex portrayals in the first place. Although she discusses a couple of state
appellate court cases where gay sex portrayals were held to warrant
obscenity-related convictions, Glazer does not actually claim that these
decisions (much less the underlying convictions) were the product of bias
against same-sex acts.[19] Indeed, she forthrightly concedes that "an honest account of the
obscenity doctrine's history must reflect the fact that not all cases involving
depictions of homosexuality have ended badly."[20]

Nonetheless, Glazer
concludes that "[o]bscenity's past and present suggest that the doctrine has
failed to distinguish between content that is obscene because it contains too
much sex, and content that is obscene because it contains representations of
gays and lesbians."[21] Although the little evidence Glazer sets
forth could "suggest" virtually anything, it certainly does not establish a
pattern of discrimination against gay sex portrayals in the application of the
obscenity doctrine by juries and judges.[22] She appears to concede this by noting
repeatedly that modern obscenity prosecutions are few and far between,[23]
and by focusing on alleged collateral effects of such discrimination instead of
that discrimination itself (despite the fact that the latter, of course, would
have provided a much stronger basis for Glazer's constitutional claims).

As for those
discriminatory collateral effects, the evidence here is just as weak as the
evidence supporting Professor Glazer's allegations of discrimination by the
courts. Glazer focuses on the actions of
two private parties to make her case: the MPAA and Google. With respect to the MPAA, the evidence of its
discrimination against gay content because
of its gay nature consists mainly of anecdotal statements of film industry "insiders"
and very general comparisons of the ratings received by films containing heterosexual
sex scenes versus those containing gay sex scenes.[24] Once again, Glazer forthrightly concedes that
"[i]t is surely possible that the MPAA rated the films whose scenes this
section highlights with a particular rating for reasons other than the sexual
orientation of its characters."[25]

As to Google,
Professor Glazer ran searches of the phrase "having sex" on Google Images using three different SafeSearch Filtering programs Google
offers to "exclude[] most explicit images from Google Image Search Results"[26]—a
"strict" filtering option, a "moderate" filtering option, and no filtering at
all. She asserts that of the first twenty images her searches
returned, the strict setting returned four depicting sex (all four involving
heterosexuals), the moderate setting returned eight depicting sex (all eight involving
heterosexuals), and the no filtering setting returned twelve depicting sex
(eight involving heterosexuals and four involving homosexuals). From these results, Glazer suggests that
Google has a "Gay Filter," as the heading of her section asserts. Putting aside the puzzling silence on what all of her search results returned (and
not just the first twenty),[27]
all Glazer has shown is that a particular search on one of Google's numerous
search engines, using different settings of its filtering software, returned
homosexual sex images solely under the unfiltered option while returning some
heterosexual sex images under all of the filtering options. While it is possible that Google's filtering
software screens out gay sex content, it is also possible that these results
can be accounted for by a number of other plausible explanations—such as the
possibility that the homosexual images searched by Google's engine were more
explicit than the heterosexual images it searched (a major feature targeted by
the filters). But in any event, Glazer
candidly concedes that it is impossible to know whether Google Image's complex
software algorithms are designed to filter gay sex content.[28]

To be sure, Glazer
openly disclaims any intent to have this one search "experiment," or her
discussion of MPAA film ratings, establish with any certainty that either
Google or the MPAA discriminate against gay sex content because of its gay
nature.[29] But at the same time she makes several
statements to the effect that she is "offering and analyzing data that seek to
demonstrate [systematic] biases against homosexual content in two major media,"[30]
and also argues generally that the obscenity doctrine is in fact
unconstitutionally producing discriminatory collateral
effects—presumably on the basis of her MPAA and Google "data" since she
offers
no other evidence of such discrimination. Glazer cannot have it both
ways. Either she must construct an argument that is consistent with
the notion
that her "evidence" of collateral discrimination is, at best,
suggestive
despite its highly speculative nature, or she must produce sounder and
more
comprehensive evidence of such discrimination on which to base her
claims of
constitutional violation.

Finally, and even more
problematically, Glazer offers no evidence that, even if some important private
actors discriminate against gay sex content because of its gay nature, they are doing so as a result of anything
the obscenity doctrine has to say on that matter.[31] As noted earlier, that doctrine is neutral on
the issue of whether the homosexual nature of sexual expression makes it more
or less obscene. Thus, Glazer is forced
to argue that the mere possibility
that juries or judges will discriminate in applying the Miller test
encourages private actors to treat gay sex portrayals
more restrictively than heterosexual ones. To state the argument is to
reveal its tenuousness. Even assuming enough private actors are aware
of one obscure aspect of a concededly "disused" legal doctrine, to
create the "implicit
yet pervasive"[32]
societal discrimination Glazer alleges, it is a much further stretch to infer
discriminatory causation from it. It
seems much more plausible that if actors like the MPAA and Google engage in
such discrimination, it simply stems from their independent determinations
(however much Glazer would argue they were misplaced) that gay sex content is
particularly inappropriate for minors (in the case of the MPAA "R" ratings,
which Glazer claims discriminatorily excludes such content),[33]
or for both minors and adults that might be using Google Images in its normal
default setting of a "moderate" filtering option.[34] This is especially true considering that, as
private actors, neither the MPAA nor Google need to concern themselves about
claimed constitutional violations from treating gay sex content differently
than heterosexual sex content. It is not
as if they need legal cover to discriminate, assuming they actually do, by
relying on obscenity doctrine to claim that gay sex portrayals are inherently
obscene and, thus, can or should be more heavily restricted.

In sum, although
Glazer's arguments regarding the obscenity doctrine's unconstitutionality are
creative, unless she can lay a firmer foundation for state action and the
empirical claims she makes, those arguments would be substantially strengthened
by recasting them into less ambitious—but no less productive from her
viewpoint—claims that I will discuss in Part II.

II. The Lawrence Effect

Professor Glazer makes
two arguments as to why Lawrence renders the obscenity doctrine unconstitutional. First, from an equal protection standpoint,
that decision lays down a "broad equality principle" mandating "that the
obscenity doctrine cannot weigh one's sexual minority status when implementing
the Miller test."[35] Second, from a First Amendment perspective,
because the Lawrence Court's attitude
towards gay sex shifted from viewing it as a disfavored subject to a viewpoint
that sees it as "simply another way that individuals might engage in sex . . . ,
obscenity's discrimination against gays and lesbians constitutes a
constitutionally impermissible viewpoint-discriminatory restriction on speech."[36] Since I have already argued that Glazer's
claims of unconstitutionality go too far, I will take the liberty of recasting
these arguments as more modest claims that the obscenity doctrine needs to be
modified in light of Lawrence in
order to achieve a principled and coherent constitutional jurisprudence as it
relates to the Court's treatment of gay sex (including expressions of it). Presumably, the modification urged by her
would be one making clear that the gay nature of sex portrayals is an
illegitimate factor for juries or judges to consider in applying the Miller test.

I conclude that Glazer's
equal protection argument has some merit to the extent it suggests that such a
modification would be warranted if the issue of obscenity discrimination
against gay sex portrayals were demonstrated to be a real problem. But unlike Glazer, I see this as an issue of
the interplay of basic equal protection and First Amendment principles—and
specifically the prohibition against content discrimination—rather than an
extension of equal protection principles from Lawrence. I also conclude
that Glazer's First Amendment viewpoint discrimination argument misconceives
the nature of that doctrine, its application in this context, and the relevance
of Lawrence to this issue. Instead of arguing that
obscenity discrimination against gay sex portrayals would constitute
impermissible viewpoint discrimination pursuant to changes wrought by Lawrence, Glazer would do better to rest
her argument squarely on the content discrimination principles I discuss in
Part A below.

A. Of Lawrence, Equal
Protection and First Amendment Principles

With respect to her
equal protection argument, in what Glazer concedes is a "broad interpretation"
of Lawrence,
she argues that the decision stands for the proposition that homosexual persons
have an "equal right . . . to life,
liberty and the pursuit of happiness."[37] As translated into the domain of assessing
the constitutionality of restrictions on sexually-explicit expression, Glazer
argues that this principle demands the Court alter the Miller test to prevent any "conflation of sex and sexual
orientation."[38] Glazer's argument essentially raises the
question of whether the Court would determine that such a modification to, or
clarification of, the Miller test was
called for in light of Lawrence.

Lawrence was a substantive due process decision where the Court held that the state lacks
a sufficient interest to punish consensual sexual activity between homosexual
adults conducted in the privacy of the home.[39]Miller
and its companion case of Paris Adult
Theatre I v. Slaton,[40]
on the other hand, addressed a state's ability to prohibit, consistent with the
First Amendment, the public distribution
or movie theatre exhibition of pornographic media. The Court justified its rulings that the
state could so prohibit materials adjudged to be obscene under the Miller test by reference to the protection
of minors, the sensibilities of unwilling viewers, and, in the case of movie
theatre exhibitions where exposing minors or unwilling viewers might not be a
problem, the right "to maintain a decent society."[41] In other words, with respect to materials that, in the words of Miller, are considered by an average
person of a community to be designed to appeal to a prurient or lascivious
interest in sex and contain "patently offensive" depictions of it,[42]
both individual and societal interests in avoiding exposure to, or having the
community affected by, public dealing in them outweighs an individual's right
to distribute or receive them. Most
pertinently, the Miller-Paris Adult
Theatre framework grants members of a given community a qualified right to
say what sexual materials are unduly lascivious and offensive when they enter
public channels of distribution,[43]
while Lawrence says that the public
has an insufficient interest in making similar determinations about intimate
sexual acts that take place in private.[44]

The question that
follows is whether Lawrence places
constraints on a community's ability, in exercising its qualified right to
control public dealings in extremely offensive materials, to define portrayed
sex acts as unduly lascivious and offensive at least in part because they
involve homosexual conduct. One response
might be that if a given community is allowed to determine for itself what
materials are too lascivious and offensive to be traded publicly, it is
difficult to see why, if gay sex portrayals are inherently lascivious and
offensive in its eyes (perhaps because there is a very low incidence of it
within that community and it is viewed as "abnormal"), it should not be allowed
to make that determination. Under Miller, the argument would go, such
judgments are allowed to be inherently subjective and democratic, and Lawrence does not change that basic proposition as to public dealing in pornographic
materials. On the other hand, it could
be argued that the respect and dignity owed to the personal decisions of gays
and lesbians about their private sexual conduct extend equally to the commercial
(in most cases) production, distribution, or consumption of gay pornography,
even within a community that does not generally accept such homosexual practices. Further, the argument would continue, if a
community tolerates a certain level of heterosexual pornography, then should it
not be forced to accept a similar level of gay sex pornography as well? Does it, in light of Lawrence,
unconstitutionally demean gays and lesbians by permitting the former but
criminalizing the latter?

As mentioned above, Lawrence was a substantive due process
case while the most appropriate claim here is one of equal protection as to
First Amendment rights—i.e., the ability to distribute or receive gay sex expression
"on a par" with heterosexual sex expression. It should be noted, however, that Lawrence did
contain strong overtones that, at least as to the issue of private, consensual
adult sex, gays and lesbians were entitled to equal protection with respect to
criminal laws seeking to regulate such conduct.[45] Does such a principle extend into the realm
of "determining obscenity?" As a basic
question of equal protection law, the Court's decision in Romer v. Evans[46]
appears to be the most apposite case. There the Court declined to treat sexual orientation as a suspect
classification warranting the application of formal heightened scrutiny to
alleged discrimination against gays and lesbians, but did apply a form of "heightened"
rational basis review to hold that laws imposing special disabilities on gays
and lesbians were generally illegitimate—and in particular when such laws
appear to have been motivated by nothing but animus towards those groups.[47]

Does the "obscenity
discrimination" claimed by Professor Glazer run afoul of this principle? This is debatable. As noted earlier, the Miller test does not single out gays or lesbians for disfavored
treatment—any discrimination of the sort at issue here would be a case-by-case
determination by juries or judges about lasciviousness and offensiveness. However, one could argue that if a jury or
judge were to single out gay content for obscene treatment simply because of
its gay nature, this would be imposing a special disability on gays or
lesbians. But would such discrimination
be the result of a bare animus towards those groups? Is offensiveness the same thing as
animus? Certainly not in all cases. One can be offended by things people do
without disliking or hating them as well. Similar reasoning applies to determinations
about prurience. Nonetheless, there is
certainly some tension between the Romer
principle and such discrimination.

In any event, it
appears that a different line of equal protection principles—based not on the suspect
status of the differential treatment of gays and lesbians but instead on
whether alleged discrimination unduly interferes with the exercise of a
fundamental right—may be more pertinent to this issue. The Court has held that when the differential
treatment of groups impairs unduly the exercise of a fundamental right, that
treatment is subjected to strict scrutiny and generally held to be
unconstitutional.[48] This raises the question of whether the alleged discrimination in "determining
obscenity" may be said to unduly impair the exercise of a fundamental
right. In Lawrence,
the Court declined to characterize the right to engage in private, consensual
sex acts as a fundamental right, although it treated the asserted liberty
interest as one deserving of an unspecified form of heightened scrutiny.[49] As noted earlier, the liberty interest being
asserted in the obscenity context implicates First Amendment concerns: the
right to distribute and receive gay sex content on a par with heterosexual sex
content. Does such an interest implicate
fundamental rights?

Certainly the Court
has held that the right to send or receive protected
expression is a fundamental liberty interest under the First Amendment. And even with respect to making determinations about the protected or unprotected status of
pornographic materials, at least in the prior restraint context, the Court has
held that substantial First Amendment interests are implicated—for example,
placing the burden of proof and other procedural burdens on a state censor as
to whether pornographic films are obscene.[50] Thus it seems that the Court would also be
likely to treat the "determining obscenity" problem in the subsequent
punishment context as also implicating important First Amendment
interests. Assuming this to be the case,
then, would the Court also believe that the alleged obscenity discrimination
against gay sex portrayals unduly interferes with such First Amendment rights?

To answer this
question, we must look to the central First Amendment principle disfavoring
content discrimination by the state, which rests largely upon equal protection
principles in any event (thus demonstrating that these two bodies of law
overlap to a significant extent).[51] Of course, when the government discriminates
against protected expression on the basis
of its content, the Court normally applies strict scrutiny and holds the
discrimination to be unconstitutional (the basic idea being that it is not the
government's place to judge the worth or value of various expression).[52] When such discrimination occurs with respect
to unprotected expression, the Court
in R.A.V. v. City of St. Paul[53]
essentially followed the same approach with the exception of recognizing that
content discrimination that does not present a "significant danger of idea or
viewpoint discrimination"[54]
is generally unobjectionable. But what
about content discrimination that occurs within
the process of determining whether certain expression is protected or
unprotected under standards defined by the Court? Of course this very process inherently
involves content discrimination, but the question here is whether the "second-level"
content discrimination that would occur if a jury or judge were to determine
that sex materials were unduly lascivious or offensive because of their
homosexual nature would offend the principle against content discrimination
generally.

As to this question,
we might look at the extent to which such secondary content discrimination
would implicate the concerns animating the general content discrimination
prohibition, as well as the extent to which such secondary discrimination might
be justified by the reasons that have traditionally permitted an exception to
the general prohibition as to obscene content. Although the Court and commentators have asserted different justifications
for generally disfavoring content discrimination by the government,[55] I have argued previously that the
principal one is a concern that the government would engage in such
discrimination to censor views, ideas, or information for illegitimate reasons[56]—in
this case, suppressing gay sex content out of mere distaste or animus instead
of attempting to mitigate harms from it the government can legitimately seek to
address.

But what is that harm
in the context of obscenity regulation? As discussed earlier, the Court allows publicly distributed pornographic
content to be discriminated against on the basis of the level of its
lasciviousness and offensiveness. Those
reasons have to do with the low "truth" value of extreme pornographic material
and its potential harm to societal interests in shielding youths, adults and
the greater community from conduct and materials that threaten society's
interests in preserving minimum levels of decency and morality.[57] This raises the question of whether gay sex
content implicates these concerns to a significantly greater degree than
similarly pornographic heterosexual content. In other words, would a jury or judge act legitimately in censoring gay
sex content because of these concerns while giving a "pass" to heterosexual
fare that was similar, or even "worse," in terms of lasciviousness or
offensiveness? It seems not. Smut is smut, and in terms of the
obscenity-related harms the government can legitimately seek to address, it
appears to make little difference whether such materials involve heterosexual
or same-sex actors. In this context,
there would also be a significant risk that such discrimination might
frequently be based on a mere distaste or animus towards gay or lesbian
behavior versus a legitimate concern about harms that might be caused by the
public distribution of obscene material generally.

Accordingly, there is
a strong argument that equal protection and First Amendment principles prohibit
the sort of claimed discrimination in applying obscenity doctrine which
concerns Professor Glazer. Thus, if this
became an issue for the Court, it very well might be willing to modify the Miller test to clarify that the
homosexual nature of a gay sex portrayal is not a legitimate factor for a jury
or judge to consider in determining whether it was unduly lascivious or
offensive under that test. However, in
my view, such a clarification has less to do with Lawrence and more to do with the application of basic equal
protection and First Amendment principles to this relatively narrow point of
law.

B. Of Lawrence and
Viewpoint Discrimination

Professor Glazer also
argues that Lawrence marked a transformation in the Court's attitude towards gay sex,
from viewing it as a questionable subject (e.g., an "odd" practice) to a
viewpoint that it is just another way for people to have sex. And "[o]nce homosexuality so transforms,
discrimination against content in light of its homosexuality" constitutes
viewpoint discrimination in violation of the First Amendment.[58] Glazer's underlying premise is that if the
Court viewed the alleged discrimination against gay sex portrayals as mere
subject matter discrimination it might not violate that Amendment since the
Court has been inconsistent in its views as to whether the content
discrimination principle prohibits subject matter discrimination. On the other hand, she argues, the Court has
been clear that viewpoint discrimination violates that principle.

Setting aside the
issues of whether the Court truly had or has such views about gay sex and
whether such a transformation occurred in Lawrence (both
of which seem highly debatable), this argument is problematic for another
reason. Assuming one could equate the
Court's attitude towards gay sex conducted in private with the commercial
production and distribution of gay pornography (another proposition that seems
highly debatable), under First Amendment doctrine whether the Court itself
views certain expression as merely pertaining to a subject or also embodying a
viewpoint is largely irrelevant. The
question is whether, in the context in which it occurred, the government actors that allegedly
discriminated against certain expression did so because of its subject
matter or because of viewpoints it may have reflected. Accordingly, with respect to Glazer's alleged
discrimination, the question would be whether juries or judges purportedly
finding gay sex portrayals to be unduly lascivious or offensive because of
their gay nature, were doing so because they were hostile to the basic notion
of homosexual sex or because they were hostile to a perceived viewpoint reflected
in such content that gay pornography was just as acceptable as heterosexual
pornography. It would likely be some of
both. So it is not clear that it matters
whether such discrimination is characterized to be on the basis of subject
matter or viewpoint. But even if it were
mere subject matter discrimination, I cannot agree with Glazer's premise that
there is a significant question as to whether it would violate the content
discrimination principle. Unlike the
older cases on which Glazer bases her argument,[59]
in recent decades the Court has been fairly clear that subject matter discrimination
by the government is equally as problematic as viewpoint discrimination even if
it reserves its strongest rhetoric for the latter: "Regulation
of the subject matter of messages, though not as obnoxious as viewpoint-based
regulation, is also an objectionable form of content-based regulation."[60]

Ultimately, then, as discussed in Part II.A., I agree with
Professor Glazer's thesis to the extent it suggests there is a strong argument
that gay sex obscenity discrimination by juries or judges, were it to exist,
would constitute impermissible content discrimination. But I part ways with her argument that Lawrence affects this calculus due to a purported shift in the Court's attitude towards
gay sex. In my view, Lawrence has little relevance to this issue. Finally, even if that decision was relevant, Glazer's argument regarding
viewpoint discrimination ignores the complexities, discussed above, that such
alleged discrimination would be occurring within a process that inherently
calls for content discrimination by government actors. This would not be an issue, as Glazer seems
to portray it by her heavy reliance on R.A.V.,[61] of content discrimination within a category of expression
that had already been determined to lack First Amendment protection.

Conclusion

In her essay, Professor
Glazer makes a creative and intriguing argument that the obscenity doctrine is
unconstitutional because of the discriminatory collateral effects it
purportedly generates. While this Essay
has discussed several legal and empirical problems with this argument, it has
concluded that her core insight—that the Miller
obscenity test should be applied in a manner that is neutral as to the
sexual orientation of the pertinent actors—appears to have substantial support
in basic principles of the Court's equal protection and First Amendment jurisprudence.

————

*. Associate Professor of Law, Pepperdine University School of Law. I wish to thank Bob Pushaw for
providing helpful comments on this Essay and Tim Del Castillo for providing
excellent research assistance on it.

2. 539
U.S. 558 (2003) (holding that adults have a substantive due process right to
engage in consensual sex with members of the same sex in the privacy of their
own homes) (link).

3. To
be sure, in her Essay, Professor Glazer also appears to make a normative
argument about the influence of the law on societal norms and how a potential
reading of the obscenity doctrine to permit same-sex discrimination might
undesirably encourage private actors to discriminate against content involving
gay sex (and perhaps against gays and lesbians generally). Such an argument would certainly be
defensible on social and legal policy
grounds, but it is not the one on which Glazer chooses to make her principal
stand.

7. 413
U.S. 15, 24 (1973) ("(a) whether 'the average person, applying contemporary
community standards' would find that the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state law;
and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value") (quoting Roth v. United States, 354 U.S. 476,
489 (1957)) (link).

9. It
is also an unusual argument because the Miller
test is facially-neutral on the subject of homosexuality; in providing criteria
for what sexual expression is obscene or not, it makes no distinctions
whatsoever between heterosexual and homosexual sex acts. See
supra note 7.

12. Id. at 1383; see also id. at 1382,
1384, 1402–04, 1432–33. Professor Glazer
appears to be correct about the dearth of modern obscenity prosecutions. See
generally, e.g., Jason Krause, The
End of the Net Porn Wars, A.B.A. J.,
Feb. 2008 (discussing the decline of federal obscenity prosecutions). Nevertheless, she suggests that the doctrine
had earlier been applied against gay sex in a discriminatory manner by certain
appellate courts—including the United States Supreme Court. See Glazer, supra note 1, at 1399–1402. However, none of the "evidence" for this proposition that Glazer
cites—the appellate court opinions and remarks by Professor William
Eskridge—truly support it. See infra note 19 and accompanying text.

13. The
Miller test is facially neutral in
the sense that it does not make sexual orientation the basis for determining
what expression is obscene. See supra note 7.

14. See Glazer, supra note 1, at 1432–33 ("The [obscenity] doctrine's refusal to
distinguish between sex and sexual orientation has left open the possibility
that content can be classified as obscene because it is either more naked, or,
in the alternative, because it is more gay.").

17. Glazer, supra note 1, 1405. Glazer
then proceeds to discuss the significant influence the MPAA has on the
distribution of movies but never relates that discussion back to the recognized
exceptions to the state action doctrine. See id. at 1405–08.

19. See id. at 1400–01. And nor would an examination of those
decisions support such an assertion. See Tipp-It, Inc. v. Conboy, 596 N.W.2d
304 (Neb. 1999) (no reference by court in its Miller
analysis to homosexuality being the basis for a finding of obscenity); State v.
Millville Video, Inc., No. CA99-10-179, 2000 Ohio App. LEXIS 4192 (Ohio Ct.
App. Sept. 18, 2000) (videotape of acts between both homosexual and
heterosexual couples deemed to meet the Miller
guidelines with specific emphasis on the sadomasochistic nature of the acts
rather than the same-sex nature). Glazer
also cites to certain Supreme Court decisions and Professor William Eskridge's
remarks on them to suggest that the obscenity doctrine had been applied in a
discriminatory manner against gay sex in the past. See Glazer, supra note 1, at 1400–01. However, these citations do not support such
a proposition. None of the decisions
Glazer relies on indicate that the Court found materials to be obscene because
of their homosexual nature, and Professor Eskridge's statements claiming such
discrimination are either bare assertions or are not supported by the cases he
relies upon. Compare William N. Eskridge, Jr., Body Politics: Lawrence v. Texas and the Constitution of Disgust and
Contagion, 57 Fla. L. Rev.
1011, 1036–39 (2005) (citing and discussing Miller v. California, 413 U.S. 15
(1973) (link), and
Ward v. Illinois, 431 U.S. 767 (1977) (link)) withMiller,
413 U.S. at 18 (in a case involving various heterosexual and homosexual images,
the Court does not even acknowledge the homosexual nature of the images much
less make that a basis of its decision) andWard, 431 U.S. at 773 (in a case
involving sadomasochistic materials, the Court did not reveal whether they
involved heterosexual or homosexual acts, much less make their homosexual
nature a basis of its affirmation of the lower courts' findings of obscenity).

It should be noted
that in Tipp-It, 596 N.W.2d at 312,
the Nebraska obscenity statute at issue in that case did label homosexual acts
as one among other types of acts, including "sexual intercourse," that could
qualify as being obscene (were it to meet other parts of the Miller test). However, as noted above, the court
essentially ignored this fact when applying that test to find that three gay
images among twenty-two displayed in a gay bar were obscene. SeeTipp-It, 596 N.W.2d at 307,
312–15. One might argue that, by
singling out "homosexuality" for potentially obscene treatment, the law
itself
constitutes evidence of the type of discrimination against gay sex
claimed by
Glazer. However, Glazer herself does not
make this argument, presumably for two reasons. First, the Nebraska
law, by including "sexual intercourse" and "prolonged physical contact
with a
person's clothed or unclothed genitals," appeared to be taking a
"shotgun"
approach to defining sexual acts that could qualify as obscene if they
were
sufficiently prurient and offensive. SeeTipp-It,
596 N.W.2d at 312. Accordingly, the law
did not appear to be discriminating against gay sex as such. Second, Glazer represented to this author
that her research on laws defining what sexual acts could qualify as obscene
under Miller revealed that they
generally did not single out homosexual acts. E-mail from Elizabeth M. Glazer, Associate Professor of Law, Hofstra
University School of Law, to Barry P. McDonald, Associate Professor of Law,
Pepperdine University School of Law (May 30, 2008, 9:08 a.m. PST) (on file with
author).

31. Once
again, the closest Professor Glazer comes to providing such evidence are some
unsupported assertions by Professor William Eskridge that the vagueness of the Miller framework has caused discrimination
against gay sex content. See id. at 1404 & nn.173–74. Although in the passage relied on by Glazer,
Eskridge asserts that "after Miller v.
California[, 413 U.S. 15](1973)some communities banned lesbian or gay
romances as well as oral and anal sex," he provides no citations to support
that assertion and, most importantly, no evidence linking such actions, even if
they were motivated by an anti-homosexual animus, to the Miller decision (particularly since Miller involved heterosexual and homosexual pornography, and not the regulation of "romances" or physical sex
acts themselves). SeeWilliam N. Eskridge,
Gaylaw: Challenging the Apartheid of the Closet 202–04 (2002).

32. See Glazer, supra note 1, at 1385 ("The collateral effect of failing to
distinguish gay and lesbian content from obscenity has been an implicit yet
pervasive sanctioning of the censoring of gay content.").

41. Id. at 59–60 & n.10, 69 (internal quotation marks omitted). The Court in Paris Adult Theatre also implied that the preservation of public
morality and the prevention of antisocial conduct were additional grounds for
banning the public distribution of obscene materials. See id.
at 57–62. And, of course, the Court
assesses all of these interests in relation to its view that obscene
"utterances are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and
morality." Miller v. California, 413 U.S. 15, 20–21
(1973) (internal quotation marks and citations omitted) (link).

43. I
say "qualified" because before a work can be deemed legally obscene, a judge
must, under Miller's third prong,
also find that it, taken as a whole, lacks serious value. See id.
This prong has been interpreted to
require as a reference a national standard, as opposed to the standards of a
given community. SeeChemerinsky, supra note 15, § 11.3.4.2. Accordingly, this prong effectively prevents a community—especially a
conservative one—from finding materials obscene that the nation generally would
say had some serious artistic or literary value.

44. Accordingly,
the analog to Lawrence in the
obscenity arena is not Miller or Paris Adult Theatre, but rather the
Court's decision in Stanley v. Georgia,
394 U.S. 557 (1969) (link),
where it held that the mere private
possession of obscene materials could not be criminalized consistent with the
First Amendment.

52. This
principle against content discrimination is consistent with the Court's
treatment, in the basic equal protection context of differential
classifications that impair the exercise of a fundamental right. SeeChemerinsky, supra note 15, § 10.1.

59. See id. at 1391–93 (discussing cases
from the 1970s when content discrimination principle was first emerging). Many of the cases examined by Glazer also
involved the government regulating speech in special capacities—such as
postmaster, property proprietor, or the military—where greater content
discrimination is generally allowed by the Court (and especially on the basis
of subject matter categories) as opposed to when the government regulates
speech in its capacity as general sovereign. See McDonald, supra note 55, at 1350 & n.5.